The Power of Perspectives

The Canadian Bar Association
Trade

Trying to get Trump to listen on tariffs

By Yves Faguy June 5, 2018 5 June 2018

Trying to get Trump to listen on tariffs

Growing opposition to the Trump administration’s trade tariffs on steel and aluminum announced last week is gathering steam among U.S. domestic interests. Politico is reporting on a major lobbying effort under way, for the most part to win further exemptions and product exclusions, which appear to be piling up faster than an understaffed Commerce Department can handle. 

Meanwhile, the industrialist Koch brothers, influential in U.S. conservative circles (and erstwhile Trump allies), have promised to massively finance a sustained “multi-year, multimillion dollar” campaign in favour of free trade.

Already on the legislative front in the U.S., there is also an effort to draw up legislation that would reverse the tariffs by subjecting them to congressional approval. The problem is that to become law anytime soon, it would require the president’s signature.

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CBA influence

Abuse of dominance guidelines need work

By Kim Covert June 4, 2018 4 June 2018

 

It’s not always easy to distinguish aggressive-but-pro-competitive business practices from those that are anti-competitive. That’s why the CBA’s Competition Law Section welcomes the Competition Bureau’s draft Abuse of Dominance Enforcement Guidelines as an aid to decision-making in the business community.

That said, the Section says the guidelines could be improved to be more helpful.

“The guidelines sometimes take an inconsistent or expansive view of existing Canadian abuse of dominance jurisprudence,” the Section says.

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The profession

Groia ruling: Right approach. Wrong call.

By Yves Faguy June 1, 2018 1 June 2018

Groia ruling: Right approach. Wrong call.

 

The Supreme Court of Canada has ruled in a 6-3 decision that Toronto lawyer Joe Groia was not guilty of committing professional misconduct. The ruling establishes an incivility test for when courtroom conduct crosses the line.

“The CBA is pleased with the SCC’s decision as it underlines the importance of both civility and resolute advocacy in the administration of justice,” CBA President Kerry L. Simmons,  Q.C. said in a statement today.

Represented by Norton Rose’s Pierre Bienvenu, Andres Garin and Jean-Christophe Marte, the CBA intervened in support of a test that balances the values courtroom civility, the independence of the judiciary, and the right of litigants to fearless and zealous representation. 

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Trade

Canada’s trade fight: The legal options are slim

By Yves Faguy June 1, 2018 1 June 2018

Canada’s trade fight: The legal options are slim

 

The world’s second largest trade relationship has hit another tough patch, and it’s hard to see how it gets repaired anytime soon.

In response to the announcement of U.S. metal tariffs, Canada has announced its intention to retaliate by imposing its own countermeasures on certain U.S.-origin goods — $16.6-billion worth of U.S. imports starting July 1.  “Canada will also challenge these illegal & counterproductive measures under NAFTA Chapter 20 and at the WTO,” the prime minister tweeted yesterday.

Clearly Trudeau, who until now has gone out of his way to keep things cordial, has lost patience.  “We have to believe at some point common sense will prevail. But we see no sign of that in the U.S. action today,” he said yesterday and even allowed himself to share details of the NAFTA negotiations. Trudeau also shared details of NAFTA negotiations – normally not discussed publicly.  He explained that a new deal was close and that he had offered to go to Washington to finalize it, but it fell apart when Vice-President Mike Pence told him over the phone that the Trump administration would on including a 5-year sunset clause. Pence has since contradicted Trudeau’s version, claiming that the trade partners were not in fact close to a deal.

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Trade law

Can we do business? Making trade deals work for you

By Kim Covert May 31, 2018 31 May 2018

Can we do business? Making trade deals work for you

 

International political arrangements, such as trade deals and sanctions on particular countries, can seem like mazes full of sharp corners and stumbling blocks to the unobservant, but to the savvy in-house lawyer they’re full of opportunities.

That was the main message from members of a panel discussion at this year’s CCCA Conference in Toronto on making the most of trade agreements. International trade lawyer Heather Innes, the former counsel at General Motors, along with LexSage founder Cyndee Todgham Cherniak and Elliot J. Burger, the Director of Global Compliance with ATS Atomation Tooling Systems Inc., covered both the obstacles that international agreements create, and the doors they open.

“You’re not just lawyers, you’re strategic business partners,” Innes told the audience. In-house counsel are uniquely placed to understand laws, policies and international relationships, how they can change, and how those changes can benefit the organization.

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CBA influence

Prompt payment legislation: Focus on harmonization

By Kim Covert May 31, 2018 31 May 2018

 

When the Senate passed its Bill S-224, Canada Prompt Payments Act, last fall, the CBA’s Construction and Infrastructure Law Section expressed its concern with many aspects of the bill and suggested that the government not move forward with it before doing extensive consultations with the construction industry.

So the Section was very happy to respond to the expert review carried out by the same construction lawyers who’d done similar work for the province of Ontario, which has recently passed its new construction legislation.

So the Section was very happy to respond to the expert review carried out by the same construction lawyers who’d done similar work for the province of Ontario, which has recently passed its new construction legislation.

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Environment

Climate change compliance in a time of uncertainty

By Ann Macaulay May 30, 2018 30 May 2018

Climate change compliance in a time of uncertainty

 

This is a time of uncertainty in the Canadian climate-change compliance area, say lawyers who practise in Alberta’s energy sector.

The federal government adopted the Pan-Canadian Framework on Clean Growth and Climate Change in December 2017 in order to meet its commitments under the 2015 Paris Agreement to set national targets to cut greenhouse gas emissions. It then released the draft Greenhouse Gas Pollution Pricing Act for public comment in January this year. The Act will help to clarify what’s expected of businesses. It proposes a federal carbon-pricing system, including a levy on fossil fuels and an output-based pricing system for industrial facilities.

“The uncertainty of which provinces and territories will be subject to the new Act will last until this fall,” says Cairns Price, Senior Legal Counsel at MEG Energy Corp. in Calgary. The proposed federal legislation, expected to become law this fall, will be implemented in whole or in part next January in any province that does not have a carbon pricing system that meets the federal standard. 

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CBA Advocacy

Concerns over access rights, judicial independent and privilege

By CBA/ABC National May 29, 2018 29 May 2018

Concerns over access rights, judicial independent and privilege

 

CBA sent its submission this morning on Bill C-58 – and proposed amendments to the Access to Information Act (ATIA) and the Privacy Act  – to the Senate’s Legal & Constitutional Affairs Committee. It is identified three areas of particular concern cover issues surrounding access rights, judicial independence and solicitor-client privilege. The bill is in its 2nd reading in the Senate.

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CBA influence

Search engines’ raison d’être at the base of online privacy debate

By Kim Covert May 29, 2018 29 May 2018

 

Are search engines engaged in commercial activity? Is it practical to require them to obtain consent before gathering personal data? Is it appropriate to ask them to decide what information needs to be removed from their indexes?

These are just some of the thorny questions in the debate over online reputation, and the right to be forgotten. Three CBA groups – the CCCA, the Privacy and Access Law Section and the Children’s Law Committeerecently responded to the Office of the Privacy Commissioner’s Draft Position on Online Reputation and the only things the three wholeheartedly agreed on were that children must be protected online and that privacy laws, written for a different time and circumstance, need to be studied by Parliament.

“Privacy legislation, as well as the Canadian Charter of Rights and Freedoms, are interpreted today in a different context than when they were originally drafted,” the Sections say. “As the internet broadly, and search engines specifically, are significant sources of information for Canadians, online reputation and disclosure of personal information online are important issues for regulators, policy makers and legislatures to examine.”

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International law

Prohibiting chemical weapons: The short arm of the law

By Erika Schneidereit May 28, 2018 28 May 2018

Prohibiting chemical weapons: The short arm of the law

 

In March 2018, the poisoning of former Russian military officer Sergei Skripal and his daughter Yulia on British territory captured the international media spotlight. Reports later claimed that the pair had been exposed to a Novichok nerve agent, quickly leading to allegations that its use constituted a violation of international law. But what international law actually says about the use of chemical weapons, and the options available to states subjected to a chemical attack, is regrettably absent from most conversations on the topic of chemical warfare.

The international legal prohibition on the acquisition and use of chemical weapons is grounded in the Chemical Weapons Convention (CWC), a multilateral treaty with 192 state-parties. Only three states (Egypt, North Korea, and South Sudan) have neither signed nor ratified the convention. This near-universal ratification is impressive given the CWC’s wide-ranging prohibitions – banning use as well as the development, production, acquisition, retention and transfer of chemical weapons. Also targeted is any assistance provided to other states to engage in activities prohibited by the CWC.

Even so, violations of the treaty (or at least, allegations of violations) continue to occur. So what actually happens when states fail to adhere to the strict rules of the CWC?

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Cryptocurrency

Parliament should formally legalize cryptocurrency as “money”

By Chetan Phull May 25, 2018 25 May 2018

Parliament should formally legalize cryptocurrency as “money”

 

Cryptocurrency can arguably exist as a commodity and security, and be a medium of exchange on this basis. However, legally speaking, cryptocurrency cannot be “money” in commercial dealings.

The reason is twofold. First, any contract involving the payment of “money” must be denominated in fiat currency under the Currency Act. Second, cryptocurrency has not yet achieved fiat status in Canada or any other country.

The legality of cryptocurrency contracts under Canadian law is therefore challenged by the view that cryptocurrency is in fact “money”.

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CBA influence

Voter intelligence is big business unfettered by regulation

By Kim Covert May 25, 2018 25 May 2018

 

The recent scandal surrounding information-gathering by Cambridge Analytics and Facebook opened a lot of eyes to the amount of data that is out there to be collected, and the uses to which it can be put.

Usually when we think about Big Data we think of it in commercial terms – companies finding ways to use personal information about consumers in order to enhance their bottom lines. But Big Data’s not just for Big Business any more –political parties are also hoovering up Canadians’ data, and they’re doing it with relative abandon, compared with the restrictions placed on the business world.

“Political parties are not subject to privacy laws,” the CBA’s Privacy and Access Law Section points out in a submission regarding Bill C-50, An Act to Amend the Canada Elections Act, noting that laws meant to protect Canadians privacy in almost all other aspects of their lives, including the Personal Information Protection and Electronic Documents Act, the Privacy Act, or Canada’s Anti-Spam Law, do not apply to political parties.

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